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Start Preamble

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is taking final action on portions of a state implementation plan (SIP) submission from the State of Idaho. The SIP submission addresses attainment plan requirements for the Idaho portion of the Logan, Utah-Idaho nonattainment area (Logan UT-ID) for the 2006 24-hour PM2.5 National Ambient Air Quality Standards (NAAQS). The Idaho Department of Environmental Quality (IDEQ) submitted the attainment plan to the EPA on December 14, 2012 (2012 SIP submission), and supplemented the attainment plan on December 24, 2014 (2014 amendment). The EPA is approving certain portions, disapproving other portions, and deferring action on the remaining portions of the attainment plan.

DATES:

This final rule is effective February 3, 2017.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA-R10-OAR-2015-0067. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information may not be publicly available, i.e., Confidential Business Information or other information the disclosure of which is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and is publicly available only in hard copy form. Publicly available docket materials are available at http://www.regulations.gov or at EPA Region 10, Office of Air and Waste, 1200 Sixth Avenue, Seattle, Washington 98101. The EPA requests that you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding Federal holidays.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background Information

II. Response to Comments

III. Final Action

IV. Consequences of a Disapproved SIP

V. Statutory and Executive Orders Review

I. Background Information

On October 27, 2016, the EPA proposed to approve certain portions and disapprove other portions of Idaho's 2012 SIP submission and 2014 amendment (81 FR 74741). An explanation of the CAA requirements, a detailed analysis of the submittals, and the EPA's reasons for proposing partial approval and partial disapproval were provided in the notice of proposed rulemaking, and will not be restated here. In this action, the EPA is approving Idaho's determination of which pollutants must be evaluated for control in the Idaho portion of the Logan, UT-ID nonattainment area for purposes of the Moderate area plan for the 2006 24-hour PM2.5 NAAQS. The EPA is also approving Idaho's evaluation of, and imposition of, reasonably available control measure and reasonably available control technology (RACM/RACT) level controls on appropriate sources in the Idaho portion of the nonattainment area. The EPA is disapproving the Idaho attainment plan with respect to the contingency measure requirement. Finally, the EPA is deferring action on the submissions with respect to the attainment demonstration, reasonable further progress, quantitative milestone, and motor vehicle emission budget requirements to a future date.

With respect to the deferred Moderate area plan elements the EPA notes that on December 16, 2016, the Agency published a proposed determination, based on complete, quality-assured air quality and certified monitoring data, that the Logan UT-ID nonattainment area failed to attain the 24-hour PM2.5 NAAQS by the applicable attainment date (81 FR 91088). If the EPA finalizes the determination that Logan UT-ID did not attain, then the nonattainment area will be reclassified from “Moderate” to “Serious” and Idaho will be required to submit a Serious area attainment plan to meet additional statutory requirements. The EPA anticipates that Idaho may elect to reevaluate and address the deferred elements of the Moderate area plan, as well as the contingency measure requirements, in the context of developing the Serious area attainment plan.

The EPA received three sets of comments on the proposed action that pertain to portions of the 2012 SIP submission and 2014 amendment that are relevant to this final action. The EPA is responding to those comments in this notice. Comments that pertain to the attainment demonstration, reasonable further progress, quantitative milestone, and motor vehicle emissions budget requirements will be addressed when the EPA takes final action on these plan elements.

II. Response to Comments

Commenter 1, comment 1: A citizen observed, “As I have traveled north out of Logan toward Idaho I have noticed that the inversion gets lighter. The PM2.5 that hangs thick and cloudy over Logan turns to spidery, wispy clouds that just reach across the mountains. They reach and then disappear completely. I don't think the emissions and PM2.5 are coming from cars in Franklin County Idaho. I think that they are coming from Logan and traveling up the valley into Franklin County, Idaho.”Start Printed Page 730

Response: The commenter's observation concerning the appearance of air quality during inversions is generally consistent with Idaho's monitoring data and air quality studies for the area which show lower PM2.5 concentrations outside of the immediate Logan area. Monitored levels of ambient PM2.5 are typically higher in Utah than in Idaho. For example, the measured 98th percentile of PM2.5 concentrations at the Franklin, Idaho monitor in 2015 was 19 µg/m[3] . However, in the context of the nonattainment area designations that were finalized in 2009, the EPA determined that emissions from sources in Idaho, including not only cars but also other area sources of emissions, were contributing to violations of the 2006 24-hour PM2.5 NAAQS in the Logan, UT-ID nonattainment area as part of the CAA section 107(d)(1)(A) designation process.[1]

Commenter 1, comment 2: The commenter also stated, “Putting auto emissions mandates in Franklin County, Idaho will not help anything. It will only add more financial issues to a rural community. I don't think it is necessary for auto emissions to be put in place in Franklin County, Idaho.”

Response: As discussed in the proposed rulemaking for this action, the EPA proposed to agree with the IDEQ's determination that a Franklin County inspection and maintenance (I&M) program for motor vehicles was not a reasonable control approach based on factors including the cost of control and economic feasibility (see pages 81 FR 74745-6). We are now finalizing that determination. We also note that existing federal motor vehicle emission regulations and requirements are having, and will continue to have, significant emission reduction benefits in this airshed (see section 5.3.8 of the 2012 SIP submittal).

Commenter 1, comment 3: The commenter also stated, “I think that the wood stove change-out and burn ban are good things to have in place to help reduce the carbon that is being put into the air; however, I think there needs to be more done in the Logan area to reduce their emissions and I'm sure they are working on it also. Logan is continuing to get more people to ride the bus.” The commenter then elaborated on several suggested control strategies for Utah portion of the nonattainment area.

Response: As discussed in our proposed rulemaking, the EPA proposed to approve the woodstove curtailment, device restrictions, and burn ban control measures for Franklin County, that are already incorporated into the SIP, as meeting the requirements of the CAA for purposes of RACM/RACT level control of appropriate sources in this area for purposes of the 2006 24-hour PM2.5 NAAQS (see pages 81 FR 74746-7). The EPA is finalizing this determination. To the extent that the commenter has additional suggestions for the Utah portion of the Logan, UT-ID nonattainment area, these suggestions are outside the scope of this action which is directed at the EPA's review of Idaho's attainment plan.

Commenter 2, comment 1: Another commenter noted, “We like the air the way it is. Your meddling in these situations is not welcome. Please do not pursue these ridiculous `rules' further.”

Response: Under the CAA, states and the EPA are required to take actions to protect public health from air pollution. Exposure to elevated levels of PM2.5 results in serious health impacts up to and including premature death from respiratory or cardiovascular diseases, and is especially unhealthy for sensitive populations such as children. Thus, CAA section 189(a) requires states with areas designated as Moderate nonattainment for the 2006 24-hour PM2.5 NAAQS to develop and submit a plan to improve air quality to meet the standards, including provisions to assure implementation of RACM/RACT level controls to reduce emissions. Under CAA section 110(k) the EPA has a mandatory duty to act on these state SIP submissions. In evaluating and acting upon Idaho's attainment plan SIP submission in this action, the EPA is complying with its own duty under the CAA.

State of Idaho, comment 1: On behalf of the State of Idaho, the IDEQ submitted several comments. The first comment questions the basis of the EPA's December 14, 2009 decision to include Franklin County as part of the Logan UT-ID nonattainment area (74 FR 58688). The IDEQ states, “Upon review of the plans submitted by both Idaho and Utah it is readily apparent that Idaho's emission sources are truly de minimis and the motor vehicle commuter pattern is equal with respect to the number of vehicles traveling from Idaho to Utah and from Utah to Idaho. Consequently, Idaho questions the technical reasons for its inclusion in this NAA, and the jurisdictional authority issues have not only held the state of Idaho back from obtaining plan approval, but also from obtaining a one-year extension to demonstrate compliance with the PM2.5 NAAQS. As a result, DEQ intends to request that the current NAA be split into two separate PM2.5 NAAs, similar to the revision that occurred in the Power-Bannock Counties. 63 FR 59722.”

Response: As noted by the commenter, the determination to designate Franklin County, Idaho as part of the Logan UT-ID nonattainment area was completed in December 2009 and is outside the scope of this action which is directed at the EPA's review of Idaho's attainment plan SIP submission. In addition, should Idaho submit a petition to split the nonattainment area, the EPA will review the technical merits of the petition. However, such a review is also outside the scope of this action.

State of Idaho, comment 2: The IDEQ resubmitted its February 26, 2016 request for a one-year extension of the Moderate area attainment date and questions the EPA's rationale for determining that the area did not attain by the attainment date, stating “DEQ should not be punished for Utah's acts or omissions.”

Response: The EPA has addressed whether the Logan, UT-ID nonattainment area attained the 2006 24-hour PM2.5 NAAQS and the IDEQ's attainment date extension request in the rulemaking Determinations of Attainment by the Attainment Date, Determinations of Failure to Attain by the Attainment Date and Reclassification for Certain Nonattainment Areas for the 2006 24-Hour Fine Particulate Matter National Ambient Air Quality Standards (81 FR 91088, December 16, 2016). This comment is thus outside the scope of this action and the EPA is not restating our rationale here.

State of Idaho, comment 3: The IDEQ states, “It should also be noted that on May 25, 2016, a Consent Decree was filed in U.S. District Court for the Northern District of California, Oakland Division, wherein EPA committed to act on the remaining items in Idaho's Plan by December 8, 2016. In the same Decree EPA did not commit to act on Utah's NAA plan. EPA is treating the two areas separately. Thus, not only should the area be split in two NAA for technical reasons, for planning purposes, the area is on two very separate tracts—with Idaho further along.”

Response: The EPA acknowledges that the Consent Decree in the litigation identified by the commenter did not include any deadline for an attainment plan submission from the State of Utah Start Printed Page 731for the Utah portion of the Logan, UT-ID nonattainment area. This is because although the litigation at issue initially included a claim that the EPA had failed to act on such a SIP submission from Utah, the State of Utah elected to withdraw the SIP submission. Thus, at the time of that Consent Decree, the EPA did not have a mandatory duty to act on the withdrawn Utah SIP submission. Utah subsequently resubmitted an attainment plan for the Utah portion of the Logan, UT-ID nonattainment area on December 16, 2014. The EPA is currently evaluating that later SIP submission in order to meet its statutory obligations under CAA section 110(k).

State of Idaho, comment 4: The IDEQ states, “DEQ, in good faith, complied with all regulations and guidance in place at the time of submittal for both the original Plan in 2012 and the amendment in 2014. Table 10 in the 2012 Plan submittal lists how DEQ complied with each requirement at that time. In the current proposed action, the EPA is evaluating DEQ' s submittal against current regulations. Instead of disapproving portions of Idaho's Plan, the EPA could request DEQ address certain deficiencies due to the new regulations and court decisions; as was done to address the Court decision in 2013.” In particular, the IDEQ calls into question the EPA's proposed disapproval of the attainment plan with respect to the reasonable further progress, quantitative milestones, and contingency measure requirements.

Response: The EPA acknowledges the difficulties the January 4, 2013, NRDC v. EPA, D.C. Circuit Court decision (706 F.3d 428) and remand of the prior PM2.5 implementation rule presented for both the EPA and Idaho. As noted by the commenter, the EPA provided states with additional time to withdraw and resubmit, or to supplement, prior attainment plan SIP submissions in order to address any impacts that resulted from the court's decision. See, Identification of Nonattainment Classification and Deadlines for Submission of State Implementation Plan (SIP) Provisions for the 1997 Fine Particle (PM2.5) National Ambient Air Quality Standard (NAAQS) and 2006 PM2.5 NAAQS (79 FR 31566, June 2, 2014). The EPA appreciates the efforts of Idaho to update its attainment plan in the 2014 amendment. However, the EPA is required by statute to evaluate the attainment plan for compliance with statutory and regulatory requirements, and must do so consistent with the requirements of the CAA, as interpreted by the courts. The EPA will continue to work with the IDEQ to meet the statutory attainment plan requirements, such as the contingency measure requirement addressed in this action. In addition, the EPA recently promulgated the 2016 PM2.5 Implementation Rule in order to provide additional regulatory certainty and guidance concerning attainment plan requirements for the 2006 24-hour PM2.5 NAAQS and future PM2.5 NAAQS. See, Fine Particulate Matter National Ambient Air Quality Standards; State Implementation Plan Requirements; Final Rule (81 FR 58010, August 24, 2016).

State of Idaho, comment 5: The IDEQ questions the EPA's proposed disapproval of the Idaho contingency measures citing the EPA's basis that the emissions reductions were not precisely quantified in terms of 1-year's worth of reasonable further progress (RFP). The IDEQ also notes that while discussed in the preamble of the 2016 PM2.5 Implementation Rule, the requirement for 1-year's worth of RFP is not cited in the regulatory text of 40 CFR 51.1014.

Response: The EPA agrees that it did not include regulatory text in the final 2016 PM2.5 Implementation Rule imposing the requirement that contingency measures reflect emissions reductions comparable to 1-year's worth of RFP in the attainment plan at issue. Nevertheless, this has been the EPA's guidance on the proper interpretation of the statutory requirements of CAA section 172(c)(9) for many years, and remains so in the preamble to the 2016 PM2.5 Implementation Rule (see page 81 FR 58066). Because the contingency measures in a Moderate area attainment plan are intended to be available in the event that the area fails to meet the RFP requirement, the EPA has long interpreted CAA section 172(c)(9) to require control measures that would result in emissions reductions comparable to 1-year's worth of RFP in the area.

The EPA acknowledges the IDEQ's concern with the challenges to identify and impose additional control measures to meet the contingency measure requirement in the Logan, UT-ID nonattainment area. As discussed in the proposal for this action, Franklin County is a sparsely populated, rural area with a unique emissions inventory. Idaho estimated that over 75% of the directly emitted PM2.5 comes from road dust, using the EPA's AP-42 road dust emission estimation methodology (see Appendix C of the 2012 SIP submittal). Idaho calculated the remaining directly emitted PM2.5 to be 13% residential wood combustion, 6% on-road and non-road mobile emissions, and 6% all other remaining source categories. Also as discussed in the proposal for this action, Idaho estimated that the limiting PM2.5 precursors from Franklin County, nitrogen oxides (NOX) and volatile organic compounds (VOC), come primarily from motor vehicles, which are expected to decline significantly due to federal motor vehicle standards already in place (see page 81 FR 74747). In considering these emission sources, the IDEQ established road sanding agreements, woodstove curtailment ordinances, and the woodstove change-out program. Because Idaho and Utah modeled that the Logan UT-ID nonattainment area would attain based solely on the Utah control measures, the IDEQ reasoned that anticipated reductions from the Idaho control measures (i.e., the road sanding agreements, woodstove curtailment ordinances, and the woodstove change-out program), were not otherwise relied upon in the control strategy for the area. As such, the IDEQ considered these early implemented contingency measures, as allowed under the EPA's longstanding guidance interpreting section 172(c)(9) to allow this approach.

However, as discussed in the proposed rulemaking, a recent decision by the U.S. Court of Appeals for the 9th Circuit rejected the EPA's interpretation of CAA section 172(c)(9) to allow already implemented control measures to meet the contingency measure requirements. Bahr v. EPA, No. 12-72327 (Sept. 12, 2016). The Court concluded that contingency measures must be control measures that will take effect at the time the area fails to meet RFP or fails to attain by the applicable attainment date, not before. Id. at 35-36. The IDEQ road sanding agreements, woodstove curtailment ordinances, and the woodstove change-out program which have already been implemented, do not meet the standard for section 172(c)(9) contingency measures set out by the Bahr decision which is controlling for EPA actions on SIP submissions from states located within the jurisdiction of the 9th Circuit. For this reason, the EPA is disapproving the contingency measures in this final action. Because the contingency measures are invalid as early implemented measures, the EPA is not addressing whether they would otherwise be approvable as contingency measures at this time.

III. Final Action

The EPA is approving parts of Idaho's attainment plan for the Idaho portion of the Logan, UT-ID nonattainment area for the 2006 24-hour NAAQS PM2.5 NAAQS. In particular, the EPA is approving Idaho's determination of which pollutants must be evaluated for control in the Idaho portion of the Start Printed Page 732Logan, UT-ID nonattainment area for purposes of the Moderate area plan for the 2006 24-hour PM2.5 NAAQS. The EPA is also approving Idaho's evaluation of, and imposition of, RACM/RACT level controls on appropriate sources in the Idaho portion of the area for this NAAQS. This includes approval of Idaho's woodstove curtailment ordinances, burn ban, heating device restrictions, and woodstove change-out programs as meeting the RACM/RACT requirements in this area. The EPA is deferring action on the submitted attainment plan with respect to the Moderate area attainment demonstration, RFP, quantitative milestone, and motor vehicle emissions budget requirements. Lastly, for the reasons set forth in our proposed rulemaking and discussed above, the EPA has determined that the contingency measures submitted as part of Idaho's 2012 SIP submittal and 2014 amendment do not meet CAA requirements, as interpreted in the 9th Circuit.

IV. Consequences of a Disapproved SIP

This section explains the consequences of disapproval, in whole or in part, of a SIP submission required under the CAA. The Act provides for the imposition of sanctions and the promulgation of a federal implementation plan (FIP) if a state fails to submit, and the EPA approve, a plan revision that corrects the deficiencies identified by the EPA in its disapproval of the initial SIP submission.

The Act's Provisions for Sanctions

Once the EPA finalizes disapproval of a required SIP submission, such as an attainment plan submission, or a portion thereof, CAA section 179(a) provides for the imposition of sanctions, unless the deficiency is corrected within 18 months of the final rulemaking of disapproval. The first sanction would apply 18 months after the EPA disapproves the SIP submission, or portion thereof. Under the EPA's sanctions regulations at 40 CFR 52.31, the first sanction imposed would be 2:1 offsets for sources subject to the new source review requirements under section 173 of the CAA. If the state has still failed to submit a SIP submission to correct the identified deficiencies for which the EPA proposes full or conditional approval 6 months after the first sanction is imposed, the second sanction will apply. The second sanction is a prohibition on the approval or funding of certain highway projects.[2]

Federal Implementation Plan Provisions That Apply if a State Fails To Submit an Approvable Plan

In addition to sanctions, once the EPA finds that a state failed to submit the required SIP revision, or finalizes disapproval of the required SIP revision or a portion thereof, the EPA must promulgate a FIP no later than two years from the date of the finding—if the deficiency has not been corrected within that time period.

Ramifications Regarding Transportation Conformity

The proposal discussed conformity freeze implications due to disapproval of the control strategy SIP.[3]
This final action only disapproves the contingency measures. Section 93.120(a) of the conformity rule is not triggered by disapproval of contingency measures, so the area is not subject to a conformity freeze as discussed in the proposal.

V. Statutory and Executive Orders Review

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501et seq.);

is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.);

does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

The SIP is not approved to apply on any Indian reservation land in Idaho and is also not approved to apply in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

The Congressional Review Act, 5 U.S.C. 801et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 6, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not Start Printed Page 733affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

2.
On April 1, 1996 the US Department of Transportation published a notice in the Federal Register describing the criteria to be used to determine which highway projects can be funded or approved during the time that the highway sanction is imposed in an area. (See61 FR 14363).